Factors to consider before buying/leasing land in Kenya

last updated on 12 November 2019 | Reading time approx. 5 minutes

Owning land in Kenya is regarded as a worthwhile investment as there is almost always an appreciation in the value of land. This has led to a steady increase in demand for land over the years and as it happens in many sectors, there has also been an increase in fraudsters making attempts to cash in by defrauding unsuspecting purchasers excited about fulfilling their dream of owning a piece of land.

Year 2018 is a classic example as the country witnessed demolition of commercial buildings worth millions of shillings constructed on riparian land and on land with disputed ownership. These demolitions occasioned the purchasers and businessmen hiring the premises untold losses.

It is also not uncommon to see buildings bearing an ‘X’ mark indicating that they have been earmarked for demolition for one reason or another. Every purchaser of land in Kenya should ensure that the land they intend to buy undergoes a thorough due diligence process before he/she proceeds with the purchase.

Below are factors to consider when buying land in Kenya:

Who owns the land?

This can be easily confirmed by conducting a land search application at the government land registry. The application should be made in the prescribed form and accompanied with the requisite fee, a copy of the title deed of the land which should be provided by the vendor and a copy of the national identity card of the person lodging the application. The results of the land search will indicate the registered owner of the land, the size of the land, duration of term (if the property is leasehold) and importantly if the property is encumbered.

Does the layout of the land meet its intended use?

It is also advisable that the potential purchaser visits the site where the piece of land is situated to confirm whether the land will meet its intended use as different areas have different zoning laws designating what the land in a particular area should be used for. There are some areas which have been designated as industrial while others have been designated as residential. The potential purchaser may also confirm the zoning laws from the county government of the area in which the land is situated.

A site visit will also confirm whether the land has been invaded by squatters, as this is quite a common phenomenon especially in the areas which were affected by historical land injustices, such as the coastal region.

The potential purchaser should also bring along a land surveyor to confirm whether the beacons on the land designating its boundaries coincide with the details reflected on the deed plan. The deed-plan denotes the plan attached to the title-deed of the land and referred to in the description of the land. A surveyor will also be handy to confirm whether the size of the land as indicated on the title is the actual size. This would also be a great opportunity for the potential purchaser to engage with the neighbours to confirm whether there are any family or boundary disputes relating to the land.

Has the land or any part of it been reserved for any purpose under any regulation of order? Depending on the location of the land, the potential purchaser should contact the relevant authorities to confirm whether the land has been reserved for any particular purpose under any law.

Road reserve

This refers to land designated for the construction of a road and the land alongside an existing road which is usually a provision made for future expansion of that road.

Before purchasing any land that is adjacent to a road, a potential purchaser should contact the Kenya National Highways Authority (KENHA) for confirmation on whether any part of the land falls within a road reserve. This is important since the law prohibits the development of any land designated as a road reserve without prior consent of KENHA. A case in point is the demolition of palatial homes in the upmarket Runda estate during the construction of the northern bypass, as the houses were on a road reserve. Here is an article on the Runda demolitions as published in Daily Nation »

It is also prudent to consult the Physical Planning Department of the county government to confirm whether the land has been reserved for the expansion or construction of a road or any other public utility.

Riparian land

This refers to land which is adjacent to an ocean, lake, sea, river, dam or any other natural water body.
There are several laws in place governing riparian land. These include:

the Agriculture Act Cap 318 (Basic Land Usage Rules), 1965 – It restricts any person from cultivating or destroying the soil, or cutting down any vegetation or pasture for any livestock, on any land lying within two metres of a watercourse, or, in the case of a watercourse more than 2 metres wide, within a distance equal to the width of that watercourse to a maximum of 30 metres, except with prior authorization.
the Survey Act, 1961 – It provides for a reservation of not less than 30 metres in width above high-water on all tidal rivers.
the Physical Planning Act, 1996 – it provides that reserves provided along any river, stream or watercourse shall not be less than 10 metres wide, excluding areas where there is established flooding.
Environmental Management Co-ordination (Water Quality) Regulations, 2006 – It restricts any person from cultivating or undertaking any development activity within full width of a river or stream to a minimum of six metres and a maximum of 30 metres on either side based on the highest recorded flood level.
Water Resources Management Rules, 2007 – It restricts the building of permanent structures within a minimum of 6 metres or equal to the full width of the water course up to a maximum of 30 metres on either side of its banks.

The multiple laws have led to confusion as it is not clear which authority should grant clearances. For clarity, Parliament should amend the above laws and provide for a single regulatory authority. In the meantime, any potential purchaser of land near a water body is required to comply with all the above regulations.

Aviation reserve

This refers to land which is adjacent to an airport or an airstrip or within the flight path of aeroplanes. Any purchaser of land near an airport or airstrip should contact the Kenya Civil Aviation Authority (KCAA) to confirm whether the land has been designated to be an aviation reserve and therefore belongs to KCAA or is located on a flight path hence there are restrictions on the developments that can be carried out on it. Legally, any buildings on a flight path or near an airport of airstrip should not be more than 4 storeys high.

Railway reserve

This is land adjacent to a railway station or railway line which has been designated as a railway reserve.
Before purchasing any land near a railway line or station, the purchaser should confirm from the Kenya Railways (KR) whether any part of the land falls within a railway reserve as this would mean that the land belongs to KR and hence cannot be sold to an individual without KR’s prior consent.

Forest, national park and game park reserve

This is land which has been demarcated as a forest, a game reserve or a national park. For any land adjacent to a forest, game reserve or national park, the potential purchaser should always confirm whether any part of it forms part of the land demarcated as a forest, a game reserve or a national park. In the case of a forest the potential purchaser should be confirmed with the Kenya Forest Service while for the game reserve or national park, the potential purchaser should confirm with the Kenya Wildlife Service.

The Ndung’u Report

This refers to a report compiled by the Ndungu Commission on illegal and irregular allocation of public land. The report provides insight into the struggles over land and graft in Kenya. It would also be prudent for a potential purchaser to review the report to avoid purchasing land which may have been acquired irregularly.

Conclusion

Every potential purchaser of land must therefore, follow the due diligence process to the letter. It is worthy of note that enforcement in Kenya especially by regulatory authorities may take time, even years, but this is a very deceptive comfort that should not be relied upon by a potential purchaser of land or investor. The recent demolitions of commercial properties that have been up and running for years have proved that any laxity or failure to follow due process when seeking approvals may be the difference between one enjoying the fruits of their investment and watching the investment go up in smoke.